Grossman v. Grossman

• Decision Date: 24 June 1942
• Docket Number: Gen. No. 42016.
• Citation: 315 Ill.App. 345,43 N.E.2d 216
• Parties: GROSSMAN v. GROSSMAN.
• Court: United States Appellate Court of Illinois

315 Ill.App. 345

43 N.E.2d 216

GROSSMAN

v.GROSSMAN.

Gen. No. 42016.

Appellate Court of Illinois, First District, Third Division.

June 24, 1942.

Appeal from Superior Court, Cook County; Rudolph F. DeSort, Judge.

Suit for separate maintenance by Anita Grossman against Samuel Grossman. From an order directing defendant to pay plaintiff temporary alimony and temporary attorney's fees, and from an order directing defendant to pay plaintiff a stated sum for attorney's fees to defend the appeal and an additional sum for expenses in connection with appeal, and directing defendant to pay plaintiff support money during pendency of appeal, defendant appeals.

Orders reversed and cause remanded with directions. Rathje, Hinckley, Barnard & Kulp, of Chicago, for appellant.

Ehrlich & Cohn, of Chicago, for appellee.

BURKE, Presiding Justice.

On July 26, 1939, Anita Grossman filed her complaint in the Superior Court of Cook County. She alleged that on January 12, 1939, she married Samuel Grossman at Chicago; that they cohabited as husband and wife until on or about July 23, 1939, at which time he left her; that she was at the time of filing the complaint, living separate and apart from the defendant without any fault on her part; and that he was a man of large means and owned three moving picture theatres and other properties which were held for him in the name of his son or daughter or others. On August 18, 1939, defendant moved to dismiss the complaint on the ground that the court did not have jurisdiction of the subject matter. The affidavit supporting the motion set up that on January 24, 1934, plaintiff, whose name was then “Annitta Levin Rest”, exhibited in the Superior Court of Cook County her complaint against her then husband, Sigmund Rest; that in said complaint she represented that the parties were married on January 20, 1928; that they cohabited as husband and wife until November 4, 1933; that her then husband had been guilty of extreme and repeated cruelty; that on November 4, 1933, Sigmund Rest deserted and absented himself from her without any reasonable cause and persisted in such desertion; that constructive service was had on said Sigmund Rest; that on his failure to appear the complaint was taken as confessed against him; that after the hearing of evidence adduced in behalf of the plaintiff the court found that she had failed to sustain her allegations of extreme and repeated cruelty; that the court found that the defendant Sigmund Rest had wilfully deserted and absented himself from plaintiff without any reasonable cause for the space of more than one year immediately prior to the filing of the complaint and that the court entered its decree of divorce in favor of plaintiff and against Sigmund Rest. The affidavit also stated that plaintiff did not charge against said Sigmund Rest the ground of divorce upon which the purported decree was granted, and that it appeared affirmatively from the record that the ground of divorce, namely wilful desertion without any reasonable cause for the space of one year, did not exist at the time of the filing of the complaint and at the time the decree for divorce was entered. The defendant maintained that the supposed marriage between the parties to this cause was void because the plaintiff had another husband living and not divorced from her at the time of such alleged marriage. On September 22, 1939, the court denied defendant's motion to dismiss the complaint. On October 11, 1939, defendant filed his answer. He again asserted that his alleged marriage to plaintiff was void for the reasons set out in the affidavit accompanying his motion to dismiss. He stated that he did not acquire the knowledge on which the motion to dismiss was based, until after the instant complaint was filed. He also stated that in the hearing of the divorce complaint filed by plaintiff against Sigmund Rest plaintiff testified that she had lived with said Sigmund Rest until November 4, 1933, and that on the latter date he (Sigmund Rest) deserted her without cause. He denied that during the time the parties lived together, supposedly as husband and wife, she conducted herself toward him as a good, true, loving and dutiful wife, and asserted that shortly after the marriage she commenced a course of wanton extravagance and incurred extensive obligations without his knowledge or consent; that on April 22, 1939, while he was living with her at the Carolan Hotel, Chicago, he entered the South Shore Hospital for medical care; that he returned to his apartment on April 25, 1939; that during the time he was in the hospital she made no effort to see him or get in touch with him; that upon returning to his apartment on April 25, 1939, he discovered that she had departed therefrom; that he had no means of knowing where she was; that later he learned from a son of plaintiff that she had left Chicago and had gone to Antigo, Wisconsin; that thereafter he persuaded her to return to him; that she returned on or about May 15, 1939; that they lived as husband and wife until on or about July 20, 1939, at which time defendant was required to go out of the city upon a business trip; that on or about July 30, 1939, he learned that plaintiff had again abandoned the home where the parties were living and that she had filed her complaint seeking separate maintenance. He denied that he ordered the plaintiff out of the premises, or that he abandoned her, or that he refused to live with her. He also denied that he was a man of large means, and stated that he had only a small amount of money and no real estate or any interest in real estate or in any theaters. He also denied that he had any properties or assets which he concealed in the name of his daughter or son, and asserted that plaintiff was a woman of large and substantial means. On September 29, 1939, plaintiff asked the court to make an allowance for temporary alimony, solicitors' fees and suit money. Thereupon the court referred the cause to a Master in Chancery “to take and report evidence with reference to the condition in life of the parties and their circumstances” with his conclusions thereon. The court retained “jurisdiction to enter any order for temporary alimony as of this date”. This order was approved on its face by the attorneys for the respective parties. Testimony was commenced before the Master on October 4, 1939, and concluded on January 11, 1940. Subsequent to the entry of the order of reference, the term of the Master expired. An order was entered authorizing him to continue as a special commissioner. The special commissioner reporting to the Court concluded that “neither plaintiff nor defendant has at present any income, in the sense of income from investments or compensation for services. It further appears, however, that in spite of the reluctance of both parties to admit the ownership of any income producing assets, each of them is able to live comfortably without the help of the other and that, if any urgent need arose, that each of them would be able to raise a reasonable amount of money. Taking all the evidence together, it appears to me that an allowance to either party of temporary alimony is not warranted. The plaintiff has claimed an allowance on account of temporary solicitor's fees. For the reasons indicated, it appears to me that, although when this cause comes on to be heard on the merits, it may appear that the plaintiff is entitled to solicitor's fees, there is now no urgency in her application and that if it should become necessary for her to pay for services rendered by counsel up to date, that she is in a position to do so”. Plaintiff filed objections to the report of the special commissioner, which were overruled. These objections were permitted to stand as exceptions. On March 12, 1941, the Chancellor sustained the exceptions and ordered that the defendant “pay to plaintiff the sum of $25.00 per week as temporary alimony until the further order of this court; said order is entered nunc pro tunc as of September 29, 1939. The court finds that there is due to plaintiff from defendant at this time the sum of $1,900, and defendant is ordered to pay the same within 60 days from this date in addition to current payments falling due each week beginning with this day. It is further ordered that defendant pay to plaintiff the further sum of $750 on account of her temporary attorney's fees in two installments of $375 each, thirty and sixty days respectively after date.” On March 17, 1941, the defendant filed his notice of appeal for the purpose of reversing the last-mentioned order. On June 18, 1941, plaintiff filed her petition for a reasonable amount of money weekly for her support and maintenance during the pendency of the appeal, and for a sum of money for expenses and attorneys' fees incurred because of the appeal. The court heard the testimony of plaintiff and defendant on this petition. On July 1, 1941, the Chancellor ordered the defendant to pay to plaintiff within 30 days therefrom the sum of $750 for attorneys' fees to defend the appeal, and the further sum of $100 for her expenses in connection with the appeal. This order also directed defendant to pay plaintiff $25 every week as and for the support of plaintiff during the pendency of the appeal. From this order defendant also appealed. The appeals were consolidated in this court.

Plaintiff's theory as to the first appeal is that she is the wife of the defendant, living separate and apart from him without fault on her part; that she is without sufficient means of her own with which to support herself during the pendency of the suit; that her husband has sufficient means with which to provide for her “notwithstanding the clumsy and ludicrous methods he has attempted in order to cover up his assets”, and that in view of all the circumstances she is entitled to an order for temporary support and attorneys' fees; and that the order entered for such purpose was a...